The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-10-13

for representatives slaid Gs,676 for tho cleo.
ton Of judges, clc.p by the people. and
60,375 for the n9v hco1ntics. Hence the
Legislature by reklhtion declared that the
hrst amendment was ratified, because II had
received O majority Of those voting Tor rep
1t had not. No votes were given against
either. See Senate, journal, PIP. 9l-2, and
the resolution in Acts bf 1854, p. 793. The
facts.
The resolution declared the amendment
for the election Of jyigcs by the people a
part OF the constitution, and II was ever
afterward 80 regarded.
The action OF the legislatures OF 1917
struction that only knIamrmatiyc vote on an
amendment should be taken. The Lcgisla-
ture OF lS5l-2 had In IL some Of the ablest
lawyers of the State. The Senate had J. w.
Dcadrick, late chief Justice of the Stalei w.
&. Dunlap, for many years a circuit Judge
+. u. Fogg, than whom Tennessee has had
no greater lawyer; s. G. Payatt, altGrward
chancellor; J. q. Stark, and NJ. X, I'M, VINO
Yas speaker. The House had for is speaker
Jordan Stokes. 1t had also J.. d. G. Atkins,
Thomas Barry, II. X. Bate, David Campbell,
James u, Coot Qate supreme judged ID. NJ.
Currin, j. G. Guild, GustnyusA 4. Henry, Rus
sci Houston, John Ncithcrland, j. d. Pal-
MGR, and w. H.. Wisencr. Perhaps no Leg
islaturc of the State has had rs many able
lawyers. And II Is proper To state that
Ffancis u. Fogg was also a member OF the
convention which formed the constitution
of 1881. There Is then much force In the ar
gumcnt that this Legislative construction by
q Legislature containing 50 much legal abil.
ny should have force. Aud the weight OF
legislative construction OF the constitution ~
recognized by our supreme court.
SEQ jenkins v. Ewin, 4 lieisk. 475G,
Coolcy's Con, 9th cd, D. 81.
l think these two amendments were all
that were submitted 10 the people for ratiii-
cation under the constitution Of 1894. And
the act Oi 1917 and the action Of the Logis-
lnturo Of 1854 Il the only construction Of
The amendment clause OF the constitution Of
1881 that am aware Of. With the knowl-
edge OF this construction Of the clause by
the two legislatures. the convention Of 1870
continued the clause In the sam language IN
the present constitution, only adding the
provision for q convention. II may well be
argued, therefore, MS Chief Justice Nicholson
said lin : Hush. ii0,) that this construction
may he regarded M having the sanction OF
constitutional recognition. The convention
OF 1870 also contained many able lawyers
Chief Justice Nicholson among them-and 10
contained two men, Humphrey X. Bate and
John Ncthcrland. both able lawyers, who
were members of the Legislature Of 1872,
which hal submitted amendments only To
All affirmative vote.
IL is also argued that II q negative vote had
been intended the constitution would have
contained language 10 show that II a greater
vote should bocast on the amendments then
for representatives, then n majority Of the
votes actually cast ShDuld be necessary Tor
ratification. The absence of such language
seems 10 indicate that only an affirmative
vote was contemplated. II would have been
easy 10 add such language. And the same
Legislature Of Tennessee which held the
amendment for the election Of judges, etc,
by the people adopted in fixing That the vote
necessary for n county subscription 10 y rail
road should be n mIoTky Ot the votes cast at
the preceding clec,ioSfor Governor, had the
prccnution To add prpyiso. that IL the vote
east in the elcctioE fF subscription was
greater than that for Governor. then major
ity Of the votes east vas necessary. See Acts
OF 1854, Page 10. GIf would seem that con-
s~titution makers would have been ~ careful
II they Intended u negative vote ON an
amendment.
II the argument prevails that the consti-
tuition only contcmplatcs nn affirmative
yotc. then II would seem to follow that the
requirement by tho Legislature of a negative
vote nt the recent election was q uullity, aud
that only the affirmative vote can bc consid-
cred, aud that II this j. a majority Of the
votes east for representatives in 1856 the
amendment is adopted.
To the argument lhat an affirmative vote
bnly Is required. itis replied that the con
stitution lcaycs the hammer aud time 81 sub
hitting an amendment Ia the Legislature.
md that the present Legislature constituting
tho constitution rcquincd n ncgntiya vote
nlso, which has been taken, and that the leg
islatiyc construction, although the precedent
already set was disrcgardcd, should have as
much force ns the Other. And II is argued
that ~ the negative vote exceeds the niiirmA-
tive the amendment fails, even though the
Affirmative votes are a majority OF those
voting for representatives ut the
election In November, lSSG. That
even admitting that "A liberal con-
struction Of the constitution requires only
n majority Of those voting for representa-
tivcs, yet this construction cannot prevail
when there is AN actual majority against the
amendment. because such q construction Is
contrary 10 the fundamental principle of
republican government, that majuritics shall
rule. This argu-,rnt Is q strong one, though
II " somewhat weakened by the fact that
the amcndinept has already been twice
agreed Ia 10y the representatives ~ the pcu-
pie. After such agreements made under all
the precautions thrown around them, u
would not seem unreasonable that the con
NlllAllflll Hlihlll nfNNNNilN lIllN NN ullflNNlffNlf
shall be- ratified II IL receives u majority uf
the votes cast fpr the representatives who
submitted u Tor ratification, without pguir-
ing a negative vote. At u rate. u seems
literally to have done NJ. And 10 only ~
mains la inquire whether this literal inter.
probation IL the correct Que. Rules uf inter
prrtation must. Therefore, he referred To-.
These rules are substantially the same,
whether applied to statutes or constitutions.
III. 49,. AAUwN - hN#- L..
Walker ". City IT Cincinnati. u Ohio State
H., nj lagc ~. says.
Courts cannot, In our judgment, nullify
an act Of legislation On the vague ground
that they think II opposed tnu general latent
spirit supposed 90 pcryadC or uulCrlic the
constitution, but which neither il terms nor
g. implications clearly disclose iu amy NJ its
parts So do sn would be- ~ nrrbgltc tho
power NJ making the constitution what the
court may think IL ought Ia be, instead OF
simply declaring what II is
Aud the supreme court ~ Tennessee, In
State ". Staten, 0tuldwcll, -, says.
"rhis court doe. not entertain the notion
that II II authorized to dculnur u statute void
! because nl rcpugnuuCy la the spirit ~ the
constitution. Considerations OF this kind
are properly addressed a. the legislative
body, Courts only net when the conflict Is
shown with the express provision of the
organic law, or with a necessary implication
irum an express provision
Aud later, In the ca-c 81 Cuokc w. Gooch.
| . llciskcll, ~ Page JiOal0 Judge Turncy,
now chief justice, speaking Tor tho court,
uses this lanrungc' moo
The uhjcct Of construction, ~ applied To
n written constitution. h To give effect Ia the
intent " the people iadopting H. In the
ease NJ all laws II Il the. intent u the law
| giycn that Is % he cnforccd. But this intent
Is IN be- found IN tho Instrument itself IL
Il 20 he presumed that language has been
employed with sufficient precision To con.
vcy u. and unless exAmVintion demonstrates